Daddy Dearest

Can the courts order a wronged father to keep quiet? David Ziskind doesn't think so.

In the early evening of December 10, 1998, David Ziskind picked up his telephone in Miami to call his daughter in Texas. When it rang in the living room of his ex-wife's house in Lubbock, ten-year-old Amy rushed to answer. "Hi, Daddy, do you want to hear about my snowman?" she exclaimed, referring to a composition for school.

Amy's mother, 45-year-old Sybil Hart, left the living room to give her daughter some privacy. "I could hear her chattering away in the living room. She was very happy and excited."

Then the chattering stopped. After a prolonged silence, Hart looked in on Amy. "I found her bug-eyed and ashen. She was holding the phone, quivering. I said, 'Hang up, hang up.' She moved back, saying, 'I'm okay, I'm okay.'"

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Hart took the receiver and hung up.
A few seconds later Ziskind called back and Hart answered. "I asked him, 'What did you tell her, she's crying?' He said, 'I told her I'm not her father.'"

For the next three days Amy stayed home from school. "I tried talking to her and the only thing she would say is, 'I wish I didn't know. I wish I didn't know. Why did he have to tell me?'" Hart recounted.

Hart's tale, told to a Miami-Dade circuit court judge a month ago, was the latest installment in one of the oddest family disputes ever to pass through the justice system here. It started when Ziskind discovered through a chance DNA test that he had probably not fathered Amy. (Her name has been changed for this story.) He wanted to disown the girl, so he petitioned the court to reduce the amount of his child support payments. But Judge Maynard "Skip" Gross denied the motion, in effect ordering the gray-haired academic to remain her father. Gross also ordered Ziskind not to breathe a word to Amy.

That made Ziskind's December phone call to Amy a crime. On March 23 Gross sentenced him to six months in jail for contempt of court. He is presently appealing the decision.

Ziskind v. Ziskind may be more than just an odd tale. Because it deals with issues at the crossroads of law and science, its disposition could become a legal precedent that would determine the fate of similar cases throughout Florida.

To understand the court system's role in untangling such a messy family dispute, one must take a tortuous journey through a five-year-long custody battle. The duel spans three states, involves two ex-spouses out to destroy each other, and has devastated one little girl. At heart it's a tale about the implosion of an American family and the limits of the law in legislating matters involving love and fidelity.

David Ziskind, an experimental psychologist at the University of Miami, has salt-and-pepper hair, dark eyebrows, and a calm, resonant voice. He talks about the emotional turmoil of his life in a clinical, detached manner, perhaps because of years of academic discipline. Or maybe such emotional distance comes from his past. Ziskind's parents fled Poland hours ahead of invading Germans and he was born in 1947 in an Austrian displaced-persons camp. "I've always distrusted authority," he says.

Ziskind initially agreed to talk to New Times about his case, but stopped after his lawyer advised him against the interview. His ex-wife Sybil, a petite 45-year-old with wavy brown hair, declined to comment for this article. Both of their lawyers also refused to discuss the case. The following account is culled mainly from court papers.

David and Sybil Ziskind seemed compatible when they married in Miami in 1980. Both were Jewish and Ph.D. candidates in psychology at Tufts University in Medford, Massachusetts. A year after their marriage, Sybil gave birth to their first daughter, Tanya. Two years later Becky was born. (All the childrens' names have been changed.) In 1986 Tufts awarded Ziskind a doctorate and a year later he moved to Philadelphia to take a job analyzing highway safety tests for a research firm called Ketron. His family followed a year later. When Sybil arrived on New Year's Day 1988, she was pregnant with the couple's third child.

By the time Amy was born in June 1988, her parents' marriage was failing fast. Ziskind declined to elaborate, but he acknowledged the couple could not get along. In March 1990 Ziskind moved out of their house to a nearby apartment. Not long after that, Sybil returned to Miami Beach and took a job helping her father manage an apartment complex.

In August 1990 Ziskind's $40,000-per-year contract with Ketron expired. Although he had no job, he decided to stay in Philadelphia because his father, who also lived in that city, was diagnosed with a brain tumor. After his father's death in late 1990, Ziskind moved to Miami to be near his children.

He stayed with Jerry Turner, a stocky, handsomely ruddy man, who was his closest friend at the time. They had met during college. (Turner declined to comment for this article.)

Ziskind began casting about for work, but the want ads were not exactly clamoring for men in their forties with doctorates in experimental psychology. He found part-time jobs toiling in a T-shirt shop and a junkyard. Later he worked as a substitute teacher for the public school system. He eventually took a room in an apartment building near Biscayne Bay and the Venetian Causeway.

In 1994 the Ziskinds' no-fault divorce was finalized. After fourteen years of marriage, the material sum of their lives amounted to little more than a 1993 Suzuki four-wheel drive car worth $11,000, $2000 of furniture, a fur coat, and $400 in jewelry. The court awarded all of this to Sybil, who opted to take back her maiden name, Hart. David Ziskind walked away with a Tandy computer and a canoe.

Both of them owed money. Sybil had $21,227 in school loans outstanding; Ziskind owed $10,300 in loans and $7000 in credit card debt. "In light of his education, it appears that the Husband is underemployed and needs to seek and secure employment consistent with his education (sic) background and abilities," chided Robert Jones, the family court special master who wrote their divorce report.

The court granted Ziskind visiting rights every Wednesday night for two hours and every other Sunday for the day. He was also allowed "reasonable telephonic communication." Ziskind was not happy with the arrangement. He thought he had been unfairly forced to follow his ex-wife to Miami to be close to their children. Now his contact with his children was significantly curtailed. "She was doing everything she could to keep me from visiting my kids," he says.

The shock of losing his offspring was overwhelming, Ziskind recalls. "After the separation I had no access [to them] without her say-so," he laments. "I was reduced to begging like a kid -- 'Can Johnny come out and play?' I was taken out of the infinite daily decisions that mold their life experiences."

For instance, he says, he discovered the name of the summer camp his daughters were attending through a friend. "Do you know what it does to a father's relationship with a kid when it is drastically interfered with? Is a father someone who is just the receiver of information?"

But it's apparent from records that Ziskind was not inspiring the court's confidence. His inability to find a decent job caused him to fall behind on his child-support payments several times.

In 1994 he met Nadine Mendelsohn. Oddly enough, Jerry Turner introduced them. Mendelsohn, who had recently divorced, says the magic was immediate. "Did you ever meet somebody and know they were your soul mate?" she asks. "That's how it was with us." (They married in 1998.)

This is the second marriage for the 46-year-old. When she was 21 years old she married an Orthodox Jewish man and they lived for a time in Israel, where she was trained as a nurse. These days her energies are devoted to helping her new husband defend himself.

Dismayed by his lack of progress finding suitable work, Ziskind began exploring an obscure and fast-growing area, DNA testing. So he contacted a lab in the Midwest in an effort to set up business selling their services locally.

In the past ten years scientists have become increasingly skilled at decoding DNA, deoxyribonucleic acid, to reveal an individual's heredity. They can cheaply and accurately analyze its strands to determine a person's parentage with virtual certainty.

The procedure is painless. All the lab requires are a few skin cells. Every cell in a person's body contains chromosomes. Half of a human's chromosomes are inherited from the mother and half from the father.

Technicians isolate the DNA, which is found in the chromosomes, using a series of chemical washes that break down surrounding proteins. Then they run the DNA through tests that reveal its structure. If a child and parent are related, half the chromosomes match. A battery of tests costs between $400 and $500.

"I was looking for something that might make some money," he says. "I thought DNA would be a good thing in Florida for paternity-testing and identifying dead bodies. I thought I would tap into a big demand."

To assess the speed and accuracy of the lab he contacted, Ziskind decided to test one of his children. So during a 1995 visit he crouched by his then-seven-year-old daughter Amy and asked her to open her mouth. He scraped the inside of her cheek with a swizzle sticklike tool capped by a small brush. Then he did the same to his own mouth with another brush. He sealed the brushes in plastic specimen bags and sent them via overnight mail to the lab. He didn't identify the subjects.

On October 13 the results came back: "... putative father named in this case was not found to possess the appropriate genetic type(s) ... necessary for him to be the biological father."

"Basically I thought the lab screwed up," he recalls. "I was just annoyed more than anything."

He says he never imagined his wife could have an affair, become pregnant, and never tell him. Nevertheless to give the lab a second chance, he had his older children's DNA tested. The results came back positive. And that's how David Ziskind says he learned Amy was not his daughter.

Hart has never confirmed nor denied the allegation. She became pregnant before the couple split, Ziskind says, but after he moved to Philadelphia for the highway safety job. He says he visited his family frequently enough during that period that he didn't question the pregnancy.

Ziskind talks about the discovery like a beaten man. He says he was not outraged, nor did he collapse in despair or even cry. He just became coolly resolved to act. "After the separation and the limited access I had to my own kids, nothing shocked me," he says. "This was just one more piece of crap."

So Ziskind decided on a course of action sure to horrify any parent. In 1998 he asked the court to reduce his child-support payment because he was not Amy's father. In effect he disowned a child he had raised as his own.

The decision wasn't as complicated as it might seem, Ziskind says. He had lived with Amy for just a year and a half before the split. Following the breakup he claims to have met with her fewer than twenty times. "Maybe if we were still married, I would have carried on," he says. "But I really didn't know her. There are a lot of people who would figure that since I'm not the father, why should I pay to support her? On the other hand, she's a really nice, sweet kid and I'm saying I don't want to support her because she's not biologically mine. I understand why people would criticize me for that.

"I also understand I have no relationship with her. It's not her fault. It was engineered by her mother to be that way."

Ziskind describes the testing of his daughters' DNA as so simple and quick that it required no explanation to the girls. Yet the information he collected was so powerful it changed all of their lives.

DNA testing is having a similar effect across the country. When men discover they are not fathers, the courts are left to decide what defines fatherhood: biology or social construct.

Until the late 1990s, the law regarding paternity disputes was designed to maintain the family unit. Thus if a child was born in wedlock, the court recognized both spouses as parents. Such presumption of paternity and maternity was meant to protect the child, especially if a parent-child bond developed before the discovery of illegitimacy.

But now some fathers' groups are arguing that science should sort out our increasingly tangled concepts of family. In Florida two earlier cases have tested that notion.

In 1997 the Florida Supreme Court upheld a precedent-setting appeals court ruling known as Daniel v. Daniel. In that St. Petersburg divorce case, Michael Daniel argued that he shouldn't have to pay to support his youngest child. The youngster was born three months into his marriage with Tara Daniel. Both parents conceded he was not the father.

But the local court found in favor of Tara. The judge reasoned Michael Daniel was better able to provide financial support than the biological father. Thus it was in the child's best interest that Daniel remain the legal father. The Second District Court of Appeal overturned the ruling, stating that "a husband, like Michael Daniel, who is not the natural or adoptive parent of a child and has not otherwise contracted for the child's care and support, has no duty to pay child support upon the dissolution of the marriage."

The Daniel ruling seemingly contradicted a 1993 state supreme court ruling, Department of Health and Rehabilitative Services v. Privette. In that decision the justices rejected a lower court's order that William Privette of Sarasota County take a blood test to determine paternity. The child had a father figure, the court reasoned. It was not in the child's interest to question that arrangement.

Ziskind's case falls squarely in the middle, says Rana Holz, a Fort Myers attorney. Holz is a member of the Florida Bar's legislative committee on family law. "If properly argued, this could go right up to the [state] supreme court," She recently coauthored an article for the Florida Bar Journal on gaps in paternity law. "The problem is we have three competing interests: the child, the mother, and the father. Right now our laws don't protect any of the parties clearly.

"The lines that are being drawn are not consistent. If a father wants to step out of his role as a parent because there's no genetic tie, he's allowed to. And if he wants to remain the father with no genetic tie, that's allowed. The father holds all the cards."

Ziskind's attempt to disown Amy resulted in a vigorous exchange of legal motions. After the court rebuffed his effort to cease child support in June 1998, Hart attempted to block his telephone calls and visits to the elder daughters because he refused to contact Amy. In court papers Hart alleged "the other two children ... are highly resentful of their father's attitude ... toward their baby sister."

In August Hart accepted a job at Texas Tech and moved the kids to Lubbock. It's unclear whether she told Ziskind about her planned move: He claims she withheld the information. She contends he agreed Texas would be best for the children.

In any case Ziskind soon tracked down the family. He called Hart's house and left the following message on her machine: "Yes, I'm calling about the Ziskind children. This is David Ziskind, the putative father. Please call me and let me know where they are. Good-bye." Then Nadine Ziskind took the phone: "Hey, Syb, this is Nadine, David's wife. We're trying to find the kids and I'm wondering if you're enjoying your sleep and who you're sleeping with."

Hart complained to Judge Maynard Gross that the message, which she saved on tape, was evidence of her ex-husband's "inappropriate and insensitive conduct." Gross then ordered that Ziskind's future exchanges with the children "shall not go beyond the scope of normal parental conversations and that the Former Husband shall not discuss with the children any matters relating to the ... issues regarding the children's biological parentage."

The court "was seeking to encourage healthy communication between the parties and their children," Gross wrote.

After the judge's ruling, Ziskind says he ran out of money to pay his lawyer. He started defending himself. He interpreted Gross's ruling as an illegal attempt to block communication with his children. "Restriction to discuss biological parentage with [Amy] is a violation of parent-child relationship," he wrote. "If FORMER HUSBAND is the 'parent' or 'father' of child, no restrictions should be placed on any discussion with her as long as they are not in violation of any laws or statues [sic] of the State of Florida or the United States of America.... It is in the best interests of the children to know their biological heritage, and hiding it ... for so many years has had a highly detrimental impact."

This was beyond simple free speech, Ziskind reasoned. This violated a father's right to talk to his kid. In addition the DNA test results were widely known. His two daughters, their grandparents, and friends such as Jerry Turner had discussed them.

"I was getting a lot of pressure to tell her, both from my wife, and from my other daughters, who kept telling me, 'Daddy, if you don't tell her, we will,'" Ziskind says.

On Tuesday, March 23, David Ziskind knotted a rust-color tie at his throat, donned a navy-blue blazer, and set out from his pleasant suburban home in Davie for his office at the University of Miami. At work he had a hard time concentrating. He was scheduled to appear before Judge Gross at 1:30 p.m. The issue was whether he had violated the order.

After lunch he marched into the county courthouse on Flagler Street. Nadine was with him. They took a seat at a large oak conference table in a book-lined conference room. An arm's length away sat Sybil, her lawyer Evan Marks, and a stenographer.

The first witness was Hart, who tearfully recounted her ex-husband's call to Amy. Ziskind must have sensed inevitable defeat after her testimony. Nonetheless he fought back by trying to establish that the children already knew the information. He called Turner as a witness. Ziskind asked his former friend if he ever discussed the paternity issue in front of the elder children. (The three girls had stayed with Turner during a break from school.) "There was some inadvertent discussion about it," Turner replied. "[The middle daughter] was very angry at you. She basically felt that if you were going to deny paternity, she didn't want you to be her father, either."

Like most of Ziskind's legal strategies, this one failed. Without a lawyer Ziskind writhed like an earthworm dredged up onto a sidewalk after a strong rain. Gross was about to step on him. At one point two armed bailiffs entered the courtroom and quietly sat on a couch at the back of the room. "Are you finished?" Gross politely inquired. When Ziskind indicated the affirmative, the judge declared: "I find you intentionally and willfully violated my order. I sentence you to 179 days in the Dade County jail."

Ziskind didn't visibly react. He collected his papers and stood. The bailiffs then escorted their charge into the hallway, where Nadine sat next to Turner. "I got the six months," Ziskind relayed. Nadine then faced Turner. "Thank you, Jerry. Thank you for everything," she said caustically.

Then the two officers, Ziskind, and Nadine walked down the hall and stepped into an elevator. On the courthouse's ground floor, Ziskind handed his tie, belt, wallet, watch, and keys to his wife. The female bailiff handcuffed him. "They'll never take me alive," Ziskind joked feebly. Nadine looked him sternly in the eye, then hissed "She's dead meat," referring to Hart. The bailiff responded angrily: "That's inappropriate talk, and you know what? I'm going to have to ask you to leave."

The bailiff correctly sensed Nadine's fierce nature. Ziskind's wife wasn't about to let her soul mate be caged without a fight. She hired a bondsman and paid him $1000 of her husband's $10,000 bond. Ziskind was released March 25 after spending two nights in jail. The couple has continued to work on an appeal. And Ziskind is fighting back. He accuses Hart of lying on several legal documents, including a financial disclosure form used to help calculate child-support payments. He alleges that Hart failed to list profits from the 1998 sale of a house for $204,000. (Child support is based on both Hart's and Ziskind's annual earnings.)

Shortly after his release, Ziskind hired a lawyer. With more than $40,000 in credit card and other debt, he can ill afford it. But he's left with little choice; he's not indigent, so he doesn't qualify for a court-appointed lawyer.

Nadine has championed her man throughout his struggle. She helps with legal research and strategy. She emphatically believes he was wronged: "It's not fair that he pay child support for a kid that's not his and that he doesn't see and has no relationship with," Nadine declares. "He hasn't lived with [Amy] since she was a year old. It's not like they have this loving father-daughter relationship."

Ziskind laments the effect the controversy has had on Tanya and Becky, the two older girls. "To the oldest, I'm still the father. To the second oldest," he pauses, "I'll get a call from her every once in a while.

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